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A potential new law in England and Wales: The Miscarriage Leave Bill

Introduction


The Miscarriage Leave Bill was introduced by Angela Crawley MP from the Scottish National Party to guarantee three days of paid bereavement leave for those experiencing miscarriage. In this Bill, “miscarriage” should include “ectopic pregnancy and molar pregnancy”.[1] Indeed, the aim of this Bill is to “make provision for paid leave for people who have experienced miscarriage”.[2]


Currently in the UK, more than 20% of pregnancies end in miscarriage, between one and two in one hundred are ectopic and one in 600 is a molar pregnancy.[3] The statistics therefore suggest that these are frequently experienced by women during pregnancy and as such, they would benefit from an appropriate legislative framework if their pregnancy is terminated.


The Bill is currently at its second reading in the House of Commons, having passed the initial first reading stage.[4] The second reading will take place on 24th March 2023.


What are women’s current rights when experiencing miscarriage?


Currently, employees may only take statutory parental bereavement leave on the death of a child under 18 years old and a stillbirth after 24 weeks of pregnancy.[5] The Miscarriage Leave Bill seems to be following New Zealand’s pregnancy loss policy model[6] which offers three days of paid bereavement leave to both parents in the event of a loss of pregnancy before 24 weeks.[7]


How the MLB came around


Keeley Lengthorn, Partner in the family and children department at Taylor Rose MW Solicitors, has been instrumental in supporting the Miscarriage Leave Bill. Notably, in light of the legislative changes and advances in New Zealand, she drafted a similar policy to be applicable initially by her firm, entitling those suffering from a miscarriage to three days’ paid leave. Taylor Rose MW Solicitors agreed and implemented the policy in January 2022 and unfortunately, Keeley Lengthorn was the first to use it for her own loss.[8]


Indeed, there is currently no statutory protection for pregnancy loss before 24 weeks available in England and Wales. As such, those experiencing a pregnancy loss at this stage are expected to come to work in business-as-usual style or take sick or annual leave.


Such a gap in the law suffices to explain the push for the Miscarriage Leave Bill in England and Wales so that women experiencing miscarriage, irrespective of the pregnancy stage, can take a short leave of absence from work to rest and recover. Indeed, it seems absurd that a woman should be entitled to statutory leave over another based on the stage of her pregnancy. The current state of the law insinuates that the post-24 weeks mark is worthy of more accommodation to women losing a pregnancy than those who suffer from baby loss before that point. It is very likely that both women will suffer from some trauma following loss of the pregnancy and it is wrong to measure who is permitted to take paid leave or not based on the stage of the pregnancy.


The 24-week mark was decided in accordance with the point at which a foetus becomes viable outside the womb.[9] As such, allowing leave earlier than at this point might seem contrary to the principle of the law because in medical terms, a life has not yet been created. However, in ethical terms, a life, at any stage, is worthy. This should be a point of consideration for lawmakers when reviewing and deciding to adopt such a legislation.


As such, this Bill is welcome so far and very much anticipated in England and Wales in a hope to protect those experiencing pregnancy loss more and allow them some time away from work.


What changes will the MLB introduce in England and Wales?


The Miscarriage Leave Bill is constructed with three different sections, namely “Miscarriage, leave and pay” (section 1), “Amendment of primary legislation” (section 2) and “Extent, commencement and short title” (section 3).


The most expected change is the granting of “three days of paid bereavement leave” to “parents who have suffered a miscarriage”,[10]thus making regulations under section 80EC on parental bereavement leave of the Employment Rights Act 1996. As such, not only is the Bill granting three days of paid bereavement leave for pregnancy loss at any stage of the pregnancy, but it is also granting it to “parents”, implying that it is not only the pregnant woman who would be entitled to such leave. This Bill is therefore largely following the structure and contents of New Zealand’s parallel legislation which came into force in March 2021.[11] This evolution, allowing miscarriage leave to both parents, seems in line with the contemporary granting of paternity leave in England and Wales,[12] thus recognising the rights of the child’s other parent on an equal footing as that of the pregnant woman.


In the second part of the Bill under the name of “Amendment of primary legislation”, multiple changes are made to the wording of the legislation. For example, section 80EA of the Employment Rights Act 1996 witnesses many insertions of “miscarriage”, which is said to also include “ectopic pregnancy and molar pregnancy”.[13] Therefore, pregnancy loss is recognised more widely by the Bill. Most explicitly, amendments to section 80EE of the same Act now include the following: “references to miscarriage are to be read to mean the loss of a pregnancy that is less than 24 weeks gestation, including ectopic pregnancy and molar pregnancy”.[14] The explicit mention of the 24 weeks’ stage is a welcome addition to the Bill because the Parliament now recognises a right to paid leave for child-bearers specifically under the 24 week mark, who were previously disadvantaged by the lack of statutory provision. This specific provision therefore puts pregnancy losses before and after the 24-week mark on an equal footing, recognising paid bereavement leave in that event.


Finally, the Bill is set to extend to “England and Wales and Scotland”[15]so notably, Northern Ireland is excluded from this provision for now.


Women’s rights will be further protected after enactment of the MLB than they currently are


The Miscarriage Leave Bill, although not yet enacted, seems to bridge the gap in the law for those experiencing pregnancy loss before the 24-week mark who previously were not entitled to statutory paid bereavement leave. Such a change is very welcome and accommodates both the child-bearer and the other parent, thus recognising the emotional impact that pregnancy loss can have on a family. Indeed, the child-bearing woman can therefore benefit from emotional support during this difficult time and the pair can grieve their loss together.


The benefit of this new legislation is to allow the woman who has lost her child to take time to process her grief and not be forced to either go to work or take annual leave for her loss.


Other options for improving women’s rights post-miscarriage in the law


The Miscarriage Leave Bill is a progressive and welcome step in the evolution of miscarriage legislation in England, Wales and Scotland. This is especially true in light of the fact that miscarriage has frequently been stigmatised, within and outside of the workplace. Indeed, when a pregnancy is lost “women deserve […] empathy, respect and support”.[16]The implementation of this legislation is likely to enhance empathy and awareness surrounding baby loss within our society.


As previously mentioned, miscarriage stigma is a real problem and affects many women suffering from pregnancy loss. The paid bereavement leave that the Miscarriage Leave Bill consecrates is likely to help open the debate for women suffering from pregnancy loss to share their story (if they are comfortable doing so) and help raise awareness about the issue. Indeed, around 15% of pregnancies end in miscarriage.[17] The gravity and scale of miscarriage suggests that many women in the workplace (and outside, although this article mainly focuses on the workplace) are affected and it can be assumed that many remain silent in the face of it.


Additionally, to paid bereavement leave therefore, those suffering from a miscarriage may benefit from a safe space where they can share their story. This may be at work following the implementation of the three-day leave, opening the space for a heightened awareness by fellow employees.


Conclusion


To conclude, the possible implementation of the Miscarriage Leave Bill appears to be the equivalent legislation to that in New Zealand which came into force in March 2021. The Bill will allow a three-day paid bereavement leave for parents suffering from miscarriage under the 24-week mark, previously unaccounted for within existing legislation. The progress of the Bill can be followed on the U.K. Parlia

[1] Miscarriage Leave Act 2021, section 1(4). [2] Miscarriage Leave Act 2021. [3] Miscarriage Association, Miscarriage, < https://www.miscarriageassociation.org.uk/media-queries/background-information/> Accessed on 30th January 2023. [4] Parliamentary Bills, Miscarriage Leave Bill, < https://bills.parliament.uk/bills/3312> Accessed 19th January 2023. [5] Government UK, Statutory Parental Bereavement Pay and Leave, < https://www.gov.uk/employers-parental-bereavement-pay-leave> Accessed 19th January 2023. [6] Today’s Family Lawyer, Miscarriage Leave Bill set for second reading in Parliament, < https://todaysfamilylawyer.co.uk/miscarriage-leave-bill-set-for-second-reading-in-parliament/> Accessed 19th January 2023. [7] Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2). [8] Taylor Rose MW Solicitors, An Update on the Miscarriage Leave Bill, < https://www.taylor-rose.co.uk/media/news/post/2023-01-17-an-update-on-the-miscarriage-leave-bill> Accessed on 19th January 2023. [9] NHS UK, You and your baby at 24 weeks pregnant, < https://www.nhs.uk/pregnancy/week-by-week/13-to-27/24-weeks/#:~:text=By%20the%20time%20you're,babies%20born%20early%20do%20survive.> Accessed 30th January 2023. [10] Miscarriage Leave Act 2021, section 1(1). [11] Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2). [12] The Paternity and Adoption Leave Regulations 2002; Employment Act 2002; Government UK, Statutory Paternity Pay and Leave: employer guide, < https://www.gov.uk/employers-paternity-pay-leave> Accessed 19th January 2023. [13] Miscarriage Leave Act 2021, Part II, sections 1 and 2. [14] Miscarriage Leave Act 2021, section 3. [15] Miscarriage Leave Act 2021, Part 3, section 1. [16] World Health Organization, The unacceptable stigma and shame women face after baby loss must end, < https://www.who.int/news-room/spotlight/why-we-need-to-talk-about-losing-a-baby/unacceptable-stigma-and-shame#:~:text=Women%20still%20face%20enormous%20stigma,in%20their%20own%20personal%20grief.> Accessed 19th January 2023. [17] March of Dimes, Miscarriage, < https://www.marchofdimes.org/find-support/topics/miscarriage-loss-grief/miscarriage#:~:text=For%20women%20who%20know%20they,1%20to%205%20percent)%20pregnancies.> Accessed 19th January 2023.

1 Comment


Guest
Feb 05, 2023

How do you reconcile the idea of miscarriage leave for pregnancy loss before 24 weeks with allowing abortion up to 24 weeks? It seems that in the former context, the foetus is considered a child, while in the latter context, it is not. I'd be interested to hear the author's thoughts on this!

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